By Steven Greenhut | Franklin Center
The U.S. Supreme Court’s decision Thursday upholding the constitutionality of President Barack Obama’s sweeping health-care law was, of course, shocking given that everyone – including, reportedly, the president and his administration – expected the high court to toss the individual mandate portion of the law. I could almost hear the screams of angst in newsrooms, where reporters have no doubt pre-written much of their work on the demise of ObamaCare.
There are two significant portions of the decision. The first upholds the government’s decision to force the public to buy health insurance, a chilling expansion of government power even in a nation where government’s reach has expanded into nearly every part of our lives.
The second significant part voids as unconstitutional the law’s granting to the federal government the authority to withhold funds from those states that refuse to approve the expansion of Medicaid.
Much of the commentary will now focus on the politics of the decision. Democratic National Committee staffers are busy gloating via Twitter, and Democratic partisans see this as a vindication for the president’s signature health-care law. They see it as a victory that the beleaguered president can take into the campaign season. Republicans – despite their nomination of a man whose Massachusetts health-care law is seen by many as the precursor to ObamaCare – are attacking the decision and promising to bring up a repeal vote in the House of Representatives.
The good news: The public will at least have something approximating a substantive debate for the fall election about the role of the federal government in something that affects our everyday lives. Mitt Romney has been dancing around the issue, still backing the reform he signed asMassachusetts governor while attacking the president’s national health-care law. He’s going to need a clear and believable story line. American voters might not pay careful attention to the nuances of policy debate, but they rarely embrace candidates who waffle, dodge and weave.
My sense is the decision will bolster Republicans, who have more evidence to back their admittedly overstated claim that this is the nation’s most important election ever. I’ve been hearing that claim since I started following politics in the mid-1970s. Still, this is indeed an important election given how much farther this president has taken the country toward domestic socialism. As much as I dislike the court’s decision, this does throw the main problem back where it belongs – on Congress, which passed this travesty in the first place and can now undo the damage.
We will no doubt see election-related clarity. This is the statement from Republican National Committee Chairman Reince Priebus:
“Today’s Supreme Court decision sets the stakes for the November election. Now, the only way to save the country from ObamaCare’s budget-busting government takeover of health care is to elect a new president. Under President Obama’s signature legislation, health care costs continue to skyrocket, and up to 20 million Americans could lose their employer-based coverage. A panel of unelected bureaucrats now has the unprecedented authority to come between elderly patients and their doctors. Meanwhile, the rules and regulations placed on job creators and small businesses make it nearly impossible to hire new workers at a time when Americans desperately need jobs.”
That’s a significant statement; the gauntlet is thrown down for the election.
While the Medicaid portion is sensible under any rational understanding of the nation’s system of states’ rights, the upholding of the individual mandate is appalling. Chief Justice John Roberts’ argument is an open door to governmental intrusion in any way and any area of life — provided it is gussied up as a tax. It’s the equivalent of what liberal justices have done over the years in contorting the constitution to justify whatever expansion of power they prefer.
Roberts started out by making the right argument: “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.”
But while the majority could not uphold the individual mandate under the provisions of the Commerce Clause, it did uphold the requirement as the equivalent of a tax. According to the court, “Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes.”
All any wannabe authoritarian need do in constructing any new law is provide an alternative. You must submit to governmental edicts forcing you to act in an affirmative way or else the IRS will impose, say, a 99 percent tax on your income. I suppose most people will obey. This is even more bizarre because the law does not describe this payment as a tax, and the court even notes that it describes it instead as a “penalty.”
Here’s a perfect example of liberal activism (forget the words, look for the penumbras) and the decision was authored by John Roberts, one of the Republican-appointed justices championed by conservatives.
Libertarians have always argued that conservatives are unreliable because they have no actual opposition to big government. Conservatives are supportive of the national security state, of an enormous military complex, of most federal programs and powers. Romney has defended federal government “entitlements” from efforts to reform them. Republicans and conservatives in particular argue for a smaller government than Democrats argue for, which isn’t hard to do given that Democrats are the party of government. In every domestic area (and many overseas areas as well), the Democratic Party is a permanent lobby for bigger government and higher taxes.
Because Republicans have no principled opposition to big government, we end up with justices such as Roberts, who think a massive governmental intrusion into our lives, including provisions that affirmatively force us to do things (buy insurance), are fine as long as they are cast as a tax.
And now Republicans have nominated a candidate for president whose signature achievement as governor is a health-care bill that isn’t all that different from the one championed by the president. Romney has many positives, but this ruling hits him at his weak spot.
I still think the GOP gains from this as it has a solid narrative to take toward November. But it does get tiring expecting that the mantle of limited government is dependent on the likes of Justice Roberts and politicians such as the government-expanding Republican president who appointed him to the court.
Steven Greenhut is vice president of journalism at the Franklin Center for Government and Public Integrity; write to him at firstname.lastname@example.org.
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